Respect from decisions and judgments of a court of law are indispensable for the proper administration of justice within a system based on the rule of law. This, however, does not mean that one cannot publicly criticise judgments delivered by our judiciary.

If that were the case then the British legal system  would still be  tainted with court decisions  stating that a man cannot be found guilty of  raping his wife, and in the United States the Dred Scott case,  denying legal standing before federal courts  to Afro-Americans whose ancestors were slaves, would still be law.

Public discussion and debate of the judiciary’s actions and decisions, provided they are kept within the parameters of decency, respect and propriety, are indeed part of the right we all enjoy of freedom of expression and indispensable for the evolution of new and fair ideas substituting the old.

 It is with this in mind that I venture to analyse and criticise the judgment delivered by the Criminal Court on January 8, overturning the decision by a lower court which had said there were enough elements for an inquiry to be held in the Panama Papers saga and the persons involved in such scandal.

The inquiry had been requested by then Nationalist Party leader Simon Busuttil immediately after the 2017 general elections.

A magisterial inquiry is just that, an inquiry: it is not a court of law which definitely decides the guilt or otherwise of persons investigated; indeed an inquiry may be held, persons are indicated as possibly having committed a crime, and then in the proceedings proper in open court, they are acquitted.

An inquiry investigates on the basis of information presented to the inquiring magistrate. The evidence which has to be produced is such that would entitle the Police to investigate. If the threshold of evidence for this preparatory act were to be raised to that of the proof in proper criminal proceedings, there would be no scope of having an inquiry at all.

In the case of the Panama Papers, no one has contested the fact that secret accounts in Panama were opened by Maltese high officials. The latter deny that they had any criminal intent.

Those who disagree with them contend that opening an account in such a jurisdiction, well known for its non-co-operation with foreign investigators, haven to money launderers, and declaring how much income would be therein transferred on a regular basis, is at least prima facie proof that something is amiss; as to the argument that the accounts were opened but were not going to be used, the accusers reply that this is like constructing a swimming pool and not filling it with water.

No one has contested the fact that secret accounts in Panama were opened by Maltese high officials. The latter deny that they had any criminal intent

Be that as it may, there are surely enough grounds for prima facie evidence to trigger off a judicial inquiry, as the lower court had stated.

All one needs for an inquiry to start is whether there is enough evidence for an investigation to commence. Ultimately, the decision whether there are enough reasons to start criminal proceedings vests in the Attorney General and the final verdict of guilt or otherwise will rest with an independent and impartial  court of law during a hearing in open court.

Requiring full evidence for an inquiry to start is sounding the death knell for any investigation spurred by private individuals or civil society.

I am sure that the prima facie evidence produced by the police to an inquiring magistrate is never fully sifted; after all it is just an inquiry; why should a stiffer test be applied to civic-minded individuals and associations?

As Kevin Aquilina, Dean of the Faculty of laws, wrote (January 13) it would appear that the judge “expected a more onerous level of proof from Busuttil than that expected from the Commissioner of Police or the Attorney General”. If that is the case then one of the parties to a case is being discriminated against.

 One can argue that the criminal proceedings proper have not yet started and therefore one cannot invoke the right to a fair hearing under article 39 of the Constitution. However, judgments of both the local courts and the European Court of Human Rights have stated that for the purposes of the right to a fair trial, anything done prior to the commencement of such trial (therefore including inquiry proceedings) which is procedurally unfair, for prosecution or defence,  falls within the parameters of the right to a fair hearing (e.g. right to legal assistance in pre-trial police detention).

The Criminal Court based its decision on an erroneous interpretation of the law which states that upon the receipt of any report, information, or complaint in regard to any offence liable to punishment of imprisonment exceeding three years, and if the subject matter of the offence still exists, the state thereof, with each and every particular shall be described, that is described by the court investigating following the information given and not by the person presenting the information!

The subsequent sentence in the law endorses this view: “For the purposes of such investigation an inquest on the spot shall be held.” It is obvious that the inquest will be held by the court, not the person submitting the report!

There is nothing wrong with the law; it is the interpretation which is faulty.

The situation is even bleaker when one considers that the Criminal Court seems to have ignored the evidence and facts arising from hacked access to the Panama Papers since it considered such evidence as “unlawful”; so governments have collapsed and ministers abroad have resigned owing to the Panama Papers hacked revelations, and yet an unauthorised revelation of a true fact is not admissible to trigger off a preliminary magisterial investigation?

Certainly in the 1971 Pentagon Papers case, so vividly depicted in the Oscar-winning film The Post, unauthorised leaks of secret papers on the Vietnam War were protected by the US Supreme Court, not buried under bureaucratic legal niceties.

The possibility has been mooted of a fresh request for a magisterial inquiry. I see no reason why not. The erroneous judgment of the Criminal Court is law only between the parties to that case, namely Busuttil who requested such inquiry, and the persons against whom such inquiry was requested.

After all, till now we have had one member of the judiciary who gave a green light for such inquiry, and another who switched on a red light. A third might perhaps solve the issue.

Tonio Borg is a former deputy prime minister and European commissioner.

This is a Times of Malta print opinion piece

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